Military, War, and Peace Commons^™

Opting Out Of The Law Of War: Comments On 'Withdrawing From International Custom', David Luban

Georgetown Law Faculty Publications and Other Works

This paper is a response to Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale LJ 202 (2010), which argues against the "Mandatory View" (according to which states are bound by customary international law with no possibility of opting out), and in favor of a "Default View" which permits states to opt out of international custom unilaterally. My response offers the following arguments: (1) Currently, the most significant contested issue about customary international law in U.S. discourse concerns the laws of war -- a topic that Bradley and Gulati treat only briefly and incidentally. Their proposal would …

Come The Revolution: A Legal Perspective On Air Operations In Iraq Since 2003, Charles J. Dunlap Jr.

Faculty Scholarship

Has the early part of the twenty-first century shown the most dramatic revolution in the role of law in armed conflict in history? Evidence suggests that it has. Today, for example, allegations about civilian casualties often dominate our discussions about strategy in irregular war, itself a phenomenon that, according to the National Defense Strategy, will preoccupy our military services for years to come. Indeed, as will be discussed below in more detail, adherence to law in armed conflict fact and perception is increasingly a central, if not defining, concern of field commanders, as well as military and civilian leaders at …

A Tale Of Two Judges : A Judge Advocate’S Reflections On Judge Gonzales’S Apologia, Charles J. Dunlap Jr.

Faculty Scholarship

This is a response to - and reflection about - Judge Alberto Gonzales's essay in the Texas Tech Law Review entitled "Waging War Within the Constitution" 42 Tex. Tech. L. Rev. 843 (2010). It argues that national security law policy in an era of complex challenges is best designed when the expertise of the widest number of knowledgeable practictioners is brought to bear in a principled and fearless manner.

The Air Force And Twenty-First-Century Conflicts: Dysfunctional Or Dynamic?, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Does Lawfare Need An Apologia?, Charles J. Dunlap Jr.

Faculty Scholarship

Few concepts in international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is …

A Bridge Too Far? Directive 1344.10 And The Military's Inroads On Core Political Speech In Campaign Media, Andrew A. Pinson

Georgia Law Review

In early 2008, the Department of Defense issued Directive 1344.10. Paragraph4.3.2.1 of the Directive prohibits non- active-duty military members who are nominees or candidates for political office from using images of themselves in uniform as the "primary graphic representation"in any campaign media. With the stroke of a pen, the Department of Defense effectively barred a powerful symbol of many a candidate's character, experience, and knowledge from use while on the campaign trail. This new regulation sets the stage for an epic clash between two entrenched doctrines: the strong First Amendment protection the Supreme Court has long afforded political campaign expression …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Faculty Scholarship

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …